Rights and Responsibilities Pertaining to Encroaching Trees and Boundary Trees

Babak Shamsi Edmonds Lawyer

Us residents of Washington State often consider ourselves lucky to live in an area with an abundance of beautiful trees. Naturally, however, the ubiquity of beautiful trees throughout our state has led to the growth of a significant body of law relating to the ownership and maintenance of trees as between neighboring property owners. Indeed, my colleagues William Kessler and Todd Cook have addressed some of the issues pertaining to this area of law in previous blog posts here and here. Of particular note, these blog posts highlight the significant consequences of damaging trees that belong to another – namely, liability for treble (triple) damages, as well as attorney’s fees and costs to the owner of the trees.

Although one might think that timber trespass only relates to entering onto another person’s property and chopping down their trees, property owners can find themselves implicated in the scope of the statute even when it comes to more benign matters, such as addressing the perceived encroachment of tree branches or roots beyond property boundary lines. Indeed, there are rules about what a homeowner can and cannot do when faced with a tree that appears to have encroached onto their property.

Generally, a property owner has the right to self-help with respect to a tree that has encroached over the boundary line onto his or her property. Specifically, this may include trimming back tree branches, or engaging in root removal of the areas that have passed the boundary line. However, even though Washington State courts permit this type of self-help, they draw the line at causing damage to the tree. In other words, if a property owner trims back branches or removes roots that have encroached over the line, but that work causes damage to the tree owned by the neighbor, then the owner engaging in the work can face liability for timber trespass. In other words, one need not actually cross the property boundary and cut down a tree to engage in timber trespass – that liability can arise simply from addressing an encroachment, an otherwise legal activity, if that work to address the encroachment causes damage to the tree. As an interesting and only somewhat related aside, if a fruit bearing tree has branches with fruit that cross the boundary line, a property owner has the right to pick fruit off the encroaching branch and use or consume it without liability, despite not actually owning the tree. In other words, fruit overhanging the boundary line is fair game.

Please note, however, that a perceived encroachment may not actually be an encroachment. Washington State law distinguishes between the encroaching trees discussed above and boundary trees – trees standing on the line between two neighboring properties. Boundary trees straddle the property line and partially stand on each property. With respect to a boundary tree, both adjoining property owners own that tree as common property, and if one of those owners cuts down, destroys, or damages the tree without the consent of the other, this will constitute a timber trespass. In other words, where the property owners share ownership of a boundary tree, they can use, maintain, and possess the tree effectively as common property as tenants in common. By the same token, however, neither owner can affect the tree without permission because to do so would interfere with the rights of the other cotenant. 

Interestingly, this also means that the self-help that a homeowner can undertake regarding encroaching trees is not necessarily available to that homeowner in the case of boundary trees. A cotenant cannot simply trim back branches or remove roots with respect to a boundary tree without permission, but that same property owner can do so with respect to an encroaching tree so long as the work does not damage the tree. This seems perhaps counterintuitive because a lack of ownership appears to afford more freedom to stop a perceived encroachment, but when considered further, this makes sense because the perceived encroachment of a boundary tree is no encroachment at all – both property owners own that tree together. In any case, no matter how one perceives the issue, shared ownership creates an additional duty to obtain permission from the other owner before acting with respect to a boundary tree.  

Knowing your property boundaries and the exact location of the trees in relation to those boundaries will allow you to better understand your rights and responsibilities with respect to those trees. Retaining the services of a surveyor and an arborist, depending on the circumstances, may assist you greatly in establishing the proper understanding. The lawyers at Beresford Booth can also assist you with the legal considerations relating to property disputes and timber trespass issues. If you have any questions regarding boundary issues, damage to land, timber trespass, or real estate issues generally, please do not hesitate to contact us.

To learn more about Rights and Responsibilities Pertaining to Encroaching Trees and Boundary Trees, please do not hesitate to contact us at info@beresfordlaw.com or by phone (425) 776-4100.

BERESFORD BOOTH PLLC has made this content available to the general public for informational purposes only. The information on this site is not intended to convey legal opinions or legal advice.